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Senate Passes Detainee Bill Sought by Bush

From left, Senators John McCain, John W. Warner and Lindsey Graham on their way into a press conference after the vote.Credit
David Scull for The New York Times

WASHINGTON, Sept. 28 — The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated.

The vote, 65-to-34, came after more than 10 hours of often impassioned debate touching on the Constitution, the horrors of Sept. 11 and the nation’s role in the world, but it was also underscored by a measure of politics as Congress prepares to break for the final month of campaigning before closely fought midterm elections.

The legislation sets up rules for the military commissions that will allow the government to prosecute high-level terrorists including Khalid Sheikh Mohammed, considered the mastermind of the Sept. 11, 2001, attacks. It strips detainees of a habeas corpus right to challenge their detentions in court and broadly defines what kind of treatment of detainees is prosecutable as a war crime.

The bill was a compromise between the White House and three Republican senators who had pushed back against what they saw as President Bush’s attempt to rewrite the nation’s obligations under the Geneva Conventions. But while the president had to relent on some of the key specifics, it allowed him to claim victory in achieving one of his main legislative priorities.

“As our troops risk their lives to fight terrorism, this bill will ensure they are prepared to defeat today’s enemies and address tomorrow’s threats,” Mr. Bush said in a statement shortly after the vote.

A similar bill was passed by the House of Representatives on Wednesday by a vote of 253 to 168, and the measure should be ready to go to Mr. Bush by the end of the week for his signature.

Republicans argued that the new rules would provide the necessary tools to fight a new kind of enemy. “Our prior concept of war has been completely altered, as we learned so tragically on September 11th, 2001,” said Senator Saxby Chambliss, Republican of Georgia. “And we must address threats in a different way.”

Democrats argued that the rules were being rushed through for political gain too close to a major election, that they would fundamentally threaten the foundations of the American legal system, and that they would come back to haunt lawmakers as one of the greatest mistakes in history.

“I believe there can be no mercy for those who perpetrated the crimes of 9/11,” said Senator Hillary Rodham Clinton, Democrat of New York. “But in the process of accomplishing what I believe is essential for our security, we must hold onto our values and set an example that we can point to with pride, not shame.”

Twelve Democrats crossed party lines to support the legislation, while one Republican, Senator Lincoln Chafee of Rhode Island, opposed it. Senator Olympia J. Snowe, Republican of Maine, did not vote.

Mr. Bush attacked Democrats for voting against the legislation even before the vote began, signaling Republicans’ intention to use it as a hammer in their efforts to portray themselves as the party of strength on national security.

But provisions of the bill came under criticism from Republicans as well as Democrats, with several of them crossing lines on some amendments to the bill that failed along narrow margins.

Among the amendments that failed were one that would have struck the habeas corpus provision, one that would have established a sunset on the legislation to allow Congress to reconsider it in five years, and one that would have require the Central Intelligence Agency to submit to Congressional oversight.

A fourth amendment would have required the State Department to inform other nations of what interrogation techniques it considers illegal for use on American troops, a move intended to prompt the administration to say publicly what techniques it considers out of bounds.

Senator Carl M. Levin of Michigan, the senior Democrat on the Armed Services Committee, argued that the habeas corpus provision “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”

And even some Republicans who said voted for the bill said they expected the Supreme Court to strike down the legislation because of the habeas corpus provision, ultimately sending the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon Smith, a Republican from Oregon, who had voted to strike the habeas corpus provision, yet supported the bill.

The legislation broadens the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in this country as well as those in foreign countries, and also anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.

It strips detainees being held at Guantánamo Bay, Cuba, of a habeas right to challenge their detention in court, relying instead on procedures known as combatant status review trials, which have looser rules of evidence than the courts.

It allows evidence seized in this country or abroad to be taken without a search warrant. It bars evidence obtained by cruel and inhumane treatment, except that obtained before Dec, 30, 2005, when Congress enacted the Detainee Treatment Act. Democrats charged that the date was set conveniently after the worst abuses at the Abu Ghraib prison in Iraq and at Guantánamo Bay.

The legislation establishes several “grave breaches” of Common Article Three of the Geneva Conventions that are felonies under the War Crimes Act, including torture, rape, murder and any act intended to cause “serious” physical or mental pain or suffering.

It leaves to the president the definition of specific interrogation techniques and rules barring any techniques that do not rise to the level of grave breaches.

The issue was sent to Congress as a result of a Supreme Court decision in June that struck down military tribunals the Bush administration had established shortly after the attacks of Sept. 11, 2001. The court ruled that the tribunals violated the Constitution, and it upended the president’s claim that the Geneva Conventions did not apply to the war on terror.

The White House submitted another bill in early September, setting off weeks of intraparty fighting as the three Senate Republicans, John Warner of Virginia, John McCain of Arizona, and Lindsey Graham of South Carolina, insisted they would not support a provision that in any way appeared to alter the nation’s commitments under Geneva.